THE SUPREME COURT: SUPREME COURT ROUNDUP

By LINDA GREENHOUSE

Published: June 29, 2004

WASHINGTON, June 28—
The Supreme Court agreed on Monday to decide whether Congress has the authority to prohibit the medical use of marijuana in states where the voters or the legislature have approved the drug's use under a doctor's care.

The case, certain to be one of the most closely watched of the court's next term, is an appeal by the Bush administration of a preliminary ruling issued last December by the federal appeals court in San Francisco. That court, finding that the federal Controlled Substances Act was ''likely unconstitutional'' as applied to two California patients and their suppliers of marijuana, issued an injunction that barred federal enforcement while the case proceeded.

The case was one of eight new appeals the justices granted as they began the last week of their 2003-2004 term. In addition to its implications for social policy, the case raises important federalism questions. One question is whether the power of Congress to regulate interstate commerce extends to marijuana that is cultivated for noncommercial use within the borders of a single state, never traveling in interstate commerce.

California, which adopted its Compassionate Use Act in 1996, is one of nine states that permit marijuana for medical use under some circumstances. The other eight are Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington. Similar efforts are under way in other states.

Attorney General John Ashcroft has strongly opposed the state laws. The case the Supreme Court accepted began with a confrontation between sheriff's deputies in Butte County, Calif., and federal drug agents, who both showed up at the home of Diana Monson, a patient whose severe back spasms are not helped by prescription drugs but are alleviated by marijuana, which she uses under her doctor's care. The sheriff's deputies concluded that the marijuana she was growing was legal, but the federal agents seized and destroyed her plants after a three-hour standoff with the deputies.

Ms. Monson and another patient who uses marijuana, Angel McClary Raich, sued the federal government in Federal District Court, seeking an order saying the Controlled Substances Act could not legally be applied to their marijuana use. They lost in that court but won a preliminary injunction in the United States Court of Appeals for the Ninth Circuit, where a 2-to-1 majority found their marijuana cultivation and use to be noncommercial in character and outside the jurisdiction of Congress.

Appealing to the Supreme Court in Ashcroft v. Raich, No. 03-1454, Mr. Ashcroft is arguing that the appeals court's ruling ''seriously undermines Congress's comprehensive scheme for the regulation of dangerous drugs.'' The brief adds: ''Marijuana is a commodity that is readily purchased and sold in a well-defined market of drug trafficking,'' regardless of whether a particular use takes place within a state's borders.

These were among the other cases the justices added to their docket for the next term, which begins Oct. 4:

Death Penalty

For the second time in two years, the court accepted an appeal from a Texas death-row inmate, Thomas Miller-El, a black man who was tried and convicted of murder in 1986 by a jury from which the prosecutor had removed 10 of 11 black potential jurors by peremptory challenges.

Mr. Miller-El tried to challenge his conviction on the ground of prosecutorial misconduct and jury bias through a petition for a writ of habeas corpus, which the United States Court of Appeals for the Fifth Circuit denied. In its ruling last year, the Supreme Court said in an 8-to-1 decision that the Fifth Circuit had failed to take full account of the evidence, and ordered it to reconsider the case. In the reconsideration, the appeals court again refused to grant habeas corpus, this time adopting the view of Justice Clarence Thomas, who had written a solitary dissent.

In his new petition, Mr. Miller-El's lawyer, Seth P. Waxman, the former solicitor general who also represented the inmate in the earlier Supreme Court appeal, told the justices that the latest decision ''undermines this court's supervisory authority'' and made it ''critically important'' for the Supreme Court to review the case again. The appeal is Miller-El v. Dretke, No. 03-9659.

Spy's Claim

Accepting an appeal by the Central Intelligence Agency, the court agreed to decide whether federal courts can consider a claim that the agency has wrongfully refused to keep a promise to provide a foreign agent with lifetime financial support in return for espionage services.

The case, Tenet v. Doe, No. 03-1395, began as a lawsuit by the foreign agent, a former high-ranking diplomat for a Communist country, and his wife, now both United States citizens. Their names were not revealed in the lawsuit, and the government has neither confirmed nor denied their claims. They said they initially received about $20,000 a year plus housing and health care. Eventually, both their services and the payments stopped and the couple, out of work, brought suit.

The Federal District Court in Seattle, in a ruling affirmed by the Ninth Circuit, has allowed the case to proceed to the pretrial discovery phase. In its appeal, the agency told the justices that this ''unprecedented holding'' was ''manifestly wrong'' and threatened to damage national security. The couple's lawyers argue that there is no danger because the appeals court invited the C.I.A. to invoke a ''state secrets privilege'' as the case goes forward.